Just as the central government moves towards a global solution to leaky homes, yesterday the Court of Appeal delivered yet another blow to Hamlin, and the general theory, if there was one, that New Zealanders were entitled to rely upon local bodies to properly inspect buildings. In Charterhall [yet to be posted on the Courts' website] , the owners of a luxury tourist lodge had sought to sue the local authority for failing to detect defects in the construction of chimney that ultimately led to fire causing damage to the building itself, destroying chattels and resulting in lost income.

In essence the Court of Appeal could find no difference between the sort of loss claimed by the plaintiffs, and that which had been claimed but which had been denied by the Court of Appeal in Te Mata (also a tourist lodge, but one which suffered from leaks). Nor could the Court of Appeal distinguish this case from that of Carter in which the Court of Appeal had refused to all damages for the economic consequences of a supposed failed inspection of a boat by the Maritime Safety Authority:

[40] Further, the loss which Charterhall suffered was not the direct result of the Council's actions, in the sense that the Council did not itself physically damage the lodge. Rather, the allegation is that the Council allowed the lodge to be built with an inherent defect, which, some years after construction, resulted in damage to the lodge and loss to Charterhall (in other words, the Council failed to identify the deficiencies in the work of Charterhall's contractors). Whether or not such loss is properly or usefully characterised as simply economic loss (see Cooke P in Hamlin at 521), it is of the same type as loss resulting from leaky building syndrome or frodefective foundations. That is, it is loss of the same type as was at issue in Te Mata Properties. We do not see the type of physical damage suffered in the present case as justifying a different approach to that taken in Te Mata Properties.

Personally I had some sympathy with the High Court decision in which Fogarty J. had refused to strike out the claim, having accepted that such distinctions might be possible. Further there might be more to the point that the core Council duty was to safeguard the health and safety of those who might use the building and that duty focused on that obligation, might have been more within the spirit of the original building cases, and indeed of the "great" Anns case itself. What appeared to tell against such a possibility which Baragwanath J. had raised in Te Mata , was the New Zealand courts' prior acceptance that economic interests in their own right could be protected by the Hamlin doctrine. Now it seems that if ecomonic interest claims are to be rejected, so will all other claims. This risks lumping all claimed losses together in the rush to retreat from the recovery of economic loss. The judgment might, for instance, be criticised as treating the claims for lost chattels as the same kind of claim as damage to the building itself or lost income as a result of not being able to use the building. Correctly classifying the type of loss is not the real point, the real point has become whose responsibility was it to avoid the damage occuring, and it the Court of Appeal has now said twice that in the case of a commercial operator it is the responsibility of a commercial operator.

What might be of even more significance might be Arnold J's apparent acceptance that Hamlin ought not to be extended to circumstances where plaintiffs are not "vulnerable" and quite capable of employing their own advisers in the building process. Next month the Court of Appeal is to hear the appeal in Sunset Terraces townhouse litigation in which the appellant councils are likely to directly challenge the applicability of Hamlin. Those councils may find some comfort in the way the Court of Appeal discussed the Hamlin doctrine itself :

[23] As will be immediately apparent, the features identified by Richardson J go to residential properties built for typical New Zealand home-owners.

The Sunset Terraces appeal directly raises whether the owners of the townhouses were really in the same position as a typical home owners like the Hamlins and whether more have been expected from them in terms of protecting their own interests. In the end however the Court of Appeal will struggle with by far the greatest difficulty of the leaky homes cases, that while litigation against local authorities was always a flawed way of dealing with the problem of insuring new domestic constructions, it has now been the New Zealand practice for three decades. The game is afoot, whatever the Court has said about what can be expected of commercial operators, retrespectively expecting home owners to have better guarded their own interests, may just not be appropriate.

Campbell launched his new book at function last Thursday night. The book follows Campbell's course of lectures at the prestigious Hague Academy of International Law, on the topic of how to resolve the problems the result when the same or similar cases are filed with different international and national courts ought.

Today's Dominion Post has a curious story reporting that "Some leaky-homes owners are being fleeced by "cartels" of lawyers, experts and builders, according to a briefing to council bosses." The important conclusion is that " a growing number of leaky-home owners come out of the claims process without enough cash for repairs once legal bills and experts' fees are paid."

Putting to one side the issue of whether 'cartels' exist ( and the article doesn't really establish that they do), the article rather seems to reflect the rather obvious truth – that litigation is simply an expensive way of obtaining compensation. A truth, that blessed as we are in New Zealand without the burden of personal injury litigation, we often forget.

Geoff McLay

19 August

Radio New Zealand and the newspapers are reporting that the report commissioned from Price Waterhouse into the New Zealand leaky homes crisis has revealed that the potential fix up price is $11.3 billion, up from the still staggering $3 billion estimated last month.

Under the weight of such figures it appears that the National Government is prepared to move away from the current model of litigation against local authorities and solvent builders towards some kind of global settlement mechanism that would result in the central government also bearing part of the cost of repairs. The model discussed appears loosely to be based on that rejected by the Labour Government in the middle of last year.

If any evidence was needed that New Zealand's reliance on litigation to provide warranties to homeowners and to incentivise inspection was misplaced, this surely is it. Hamlin and the earlier building cases that established local authority liability may be part of the New Zealand legal canon, but good social and economic policy they were not.

Any after the event settlement system is bound to be difficult to implement. The questions are not just practical such as enabling pensioners to essentially reverse mortgage their homes to pay for repairs, but also conceptual. What will be interesting is the Minister's justification for the change in policy. Putting emotions aside it is difficult to conceptualise why investment in "homes" is different from other capitalistic investments, and why that investment should be protected when others are not. That does not mean that the Government should not come to the aid of those affected, and indeed the Government did so in creating deposit insurance scheme for those invested in finance companies, but rhetorically the government faces a challenge in explaining why it ought now to intervene. One justification might be that it was the central government failures in regulation that at least facilitated the crisis. But perhaps, in the end ,the greatest justification will simply be that the mess is too great to expect a private individuals to clean it up. Politically there will be the challenge of explaining to those live outside Auckland, Wellington and Christchurch why their tax money should be spent on fixing up problems in those cities. On the other side will those plaintiffs who believe it worthwhile be allowed to out out of the system?

Also problematic will be distinguishing between different classes of plaintiffs, either by perception of their own fault or the purpose for which they made their investment. What use will be made, for instance, of the current case law that limits recovery to non- commercial buildings.

Geoff McLay

18 August 2009

Geoff McLay

We were all saddened this morning to learn of Mike's death from an illness that forced his retirement from Auckland Law School last year.

Mike was a prolific public law scholar with a considerable international reputation over the broad range of the subject. He had also published a book length study of the leading case on abuse of rights, Bradford v Pickles. At the time of his retirement he was working on a history of Administrative Law. The regard in which he was held was shown by the liber amicorum that was published this year and which contained essays from scholars through out the world.

In addition to his scholarship he served Auckland law school and University in a whole range of capacities, including as Dean in the 1990s. He was by all accounts a first rate teacher.

But Mike's contribution was much more than his scholarship or his role at Auckland. His enthusiasm for the law, and for discussing it, was as infectious as it was boundless. He has inspired many other New Zealand scholars to take their roles and their scholarship more seriously, and to place their work not only within a New Zealand context, but also within the common law tradition of which we are part. He will be greatly missed everywhere where people care about that tradition.

The title of his liber amicorum was, appropriately, A Simple Common Lawyer .

The Political Science and International Relations programme at Victoria University of Wellington and the Canadian High Commission in Wellington are pleased to host an interdisciplinary conference on New Zealand-Canadian relations and policy challenges on 9-10 February 2010. The conference organisers welcome paper or panel proposals that either address international connections between New Zealand and Canada or comparatively explore how the two respond to key political, social, legal and public policy challenges. The following themes are of particular interest:

• the history of the Canada-New Zealand relationship
• comparative experiences of multiculturalism and managing diversity;
• the rule of law (including the development of common law) and human rights: ideas and practices
• Maori, First Nations and Inuit: experiences and connections;
• foreign, defence and security policy and issues
• politics and government, including electoral systems and political representation (including women and minority representation); and
• public policy, including environment and energy issues.

The conference will include a mix of academics and policy practitioners from New Zealand and Canada as well as other international participants. Selected conference papers will contribute to an edited volume addressing the multiple dimensions of New Zealand-Canadian relations.

Proposals for papers are due by 1 November 2009. A proposal should include the following: The title of the paper and an abstract of no more than 250 words; author(s) names, institutional affiliation and contact details; three to four keywords.

The organisers encourage panel as well as individual paper proposals. A panel should include at least three presenters and a chair. We also welcome panels that include a mix of academics, practitioners from the policy community, and representatives from civil society.

Please send proposals or expressions of interest to:

Dr David Capie

Political Science and International Relations Programme

Victoria University of Wellington

david.capie@vuw.ac.nz

….

On 28 and 29 April 2008 55 representatives of civil society organisations, National Human Rights Institutions and international human rights organisations, Members of Parliament, the Pacific Island Forum Secretariat, RRRT, the UN Office of the High Commissioner for Human Rights Regional Office for the Pacific, the Asia Pacific Forum, the Commonwealth Secretariat, and the Pacific Island Police Commissioners, jurists and academics based in Federated States of Micronesia, Papua New Guinea, Samoa, Fiji, Tonga, Vanuatu, Kiribati, Samoa, Australia, New Zealand, Chile, and the United Kingdom met in Apia, Samoa to consider Strategies for the Future: Protecting Human Rights in the Pacific. They were joined by officials of the Government of Samoa including inter alia, officials from the Samoan Attorney-General's Office, Foreign Affairs, Parliamentary Counsel Office and the Office of the Ombudsman...

The first day of the conference was devoted to an analysis of human rights issues in the Pacific. The key note address was given by Ms Imrana Jalal, Fiji's first human rights commissioner, exploring whether a Pacific human rights charter was desirable. After exploring the history of a regional Pacific human rights charter and its failure to evolve she pointed out that in 2007, Judicial Officers and NGOs in the Pacific called for a regional human rights mechanism. She emphasised that 19 years after the LAWASIA Charter the call for a regional human rights mechanism has been made by Pacific people themselves. She believes the climate has changed from the one in which the 1989 Charter was discussed She argued a regional mechanism could take account of regional peculiarities and complementing the UN human rights convention system, for example, the right to fish is an important right; the right to a safe environment is critical to Pacific Islanders, especially since climate change effects are being felt disproportionately in the Pacific. Her speech was complimented on Day 2 by Kathryn Hey, Massey University, New Zealand, whose paper drew on interviews with six participants in the Pacific region in regard to the question whether a regional human rights mechanism was desirable. She concluded that a coordinated approach was needed for a regional mechanism to be successfully implemented.

In the following sessions the identified human rights issues culture and language, education, health, environment and rule of law were discussed on the basis of the country reports. Professor Lau Asofou Soo, National University of Samoa, examined culture and language and its interface with human rights. He came to the conclusion that reconciling traditional values with human rights principles was possible but a gradual process and will take time and patience.

Father Tevita, Friendly Island Human Rights and Democracy Movement in Tonga focussed in the next session on health, recounting his experiences in Tonga. Before going into more detail about issues relating to health Father Tevita stated that there was a need for good governance and transparency in Tonga. In his review Father Tevita pointed out that due to economic restraints health care for the general public in Tonga was sub-standard. He gave an example, where a drug was used which had not been on the market in either Germany or New Zealand for the last 30 years.

Freda Talo, human rights lawyer and Chair, Individual and Community Rights Advocacy Forum, Papua New Guinea, set the scene to her presentation which focused on the right to education by pointing out that Papua New Guinea has six million people with 850 tribal groups and 860 languages. This creates enormous challenges, and that it is "quite amazing that we have held together without blood shed." ..

Susan Glazebrook, Judge of the New Zealand Court of Appeal, addressed the question of the right to a quality environment. The LAWASIA draft charter already had environment as a separate right. ...

The last presentation, canvassing the country reports, focussing on the rule of law was by Tupou Vere, Pacific Concerns Resource Centre, Fiji. Drawing from the country reports she pointed out that sometimes the line between Executive and Legislature seemed to be blurred. Naturally, Tupou Vere's presentation focussed on the situation in Fiji examining the state of the rule law during and since the last coup.

On the second day Professor Sarah Joseph, Monash University, discussed the impact of the WTO on human rights. She suggested that economic globalisation will be a challenge for the Pacific and discussed the role of the WTO as one of the chief agents in that. Outlining the pros and cons of Free Trade agreements and their impact on human rights she specifically identified challenges for the Pacific States in the danger to be used as precedent, like Vanuatu, for other countries which have not yet joined the WTO.

Professor Joseph was followed by Professor Unasa Faa, National University of Samoa, who spoke on "Human Rights and Custom". He used his native Samoa as an example to demonstrate that in his view custom and human rights are compatible concepts and that the implementation of human rights standards would not lead to a demise of customary practices- that peaceful coexistence was possible.

The four following presentation gave an overview of the European Convention on Human Rights and its implementation (Professor Kevin Boyle, Essex), the Inter-American Human Rights Commission (Mr Felipe Gonzalez, Human Rights Commissioner), the African Charter on Human and Peoples Rights (a paper prepared by Professor Jacques Fremont, University of Montreal whom the inefficiency of air travel prevented to coming but whose paper was summarised by Dr Petra Butler) and the emerging ASEAN Charter (Ms Sou Chiam, Barrister, Auckland). Those presentations gave the participants the chance to compare what had crystallised as human rights challenges in the Pacific with experiences in other parts of the world.

Ms Kendra Dessereux, PACLII showed the participants the possibilities an online database like PACLII offers to disseminate information around the Pacific and to empower courts, NGOs, and human rights lawyers in their use of and adherence to human rights.

The panel discussion at the end with panellists Ms Imrana Jalal, Professor Kevin Boyle, and Susan Farran, Senior Lecturer, University of Dundee chaired by Ms Andie Fong-Toy, Director of the Political and Security Programme, Pacific Island Forum Secretariat drew together the discussion of the two days stating that the conference had shown that the discussion on a regional mechanism had markedly evolved over the last years and that it was time now to establish a working group to draft a proposal for a regional mechanism. The final conference statement was discussed and is reproduced in this volume.

...

May the spirit of the conference continue.

Petra Butler

Wellington, May 2009

The VUWLR is proud to announce the publication of a special issue on Human Rights in the Pacific. Edited by Dr Petra Butler the issue is based on papers presented at the Human Rights Conference held in Apia in May last year. The issue contains a broad range of papers but is broadly themed around the creation of a Human Rights Convention for the Pacific . This issue of over 400 pages was a massive undertaking and I especially want to congratulate Petra and her assistant editor Catherine Harwood as well as others on the Law Review for seeing it to its conclusion.

A group of academics, editors and publishers led by myself and Justice Chambers has been developing a uniform New Zealand legal style guide.  We hope that the guide will adopted by all New Zealand publishers, law schools and courts.  We have released a consultation version.  Any comments would be gratefully received and may be sent to geoff.mclay@vuw.ac.nz.  The project has been supported by the New Zealand Law Foundation. 

Geoff McLay

Reader

Geoff McLay

5 August 2009

Something happened yesterday never thought I would see actually happen. Two decades after the Law Commission first recommended wholesale reform of New Zealand Limitations Act 1950, Parliament gave the first reading to a new Limitations Bill. Up until yesterday Parliament had resolutely refused the pleas of Judges to deal with what has become an impossible mess as advocates have tried to fit within the structures of the old English limitations regime, new problems over sexual abuse claims and claims for economic loss under the rule in Hamlin.

Limitation law is often seen as arcane, but anyone who has had to advise either a plaintiff or a defendant caught in the web of the current statute, will see this is a cause for great celebration. As with any limitation statute there will be winners and losers as a result of the rules that Parliament is in the process of reforming. It deserves the attention of not just lawyers, but all advocates for civil justice. As already flagged by the Maori Party, there are significant issues to be argued about in relation to limitation periods that might apply to Maori customary land claims, and interesting debates are to be had as to what the proper age of majority ought to be.

For the first time New Zealand is to have its own indigenous limitations regime. New Zealand lawyers will no longer be able to rely on outdated English textbooks to resolve thorny issues of balancing the rights of plaintiffs to be heard and defendants to have certainty. The most radical proposal is the removal of "accrual of the cause of action" as being the beginning of limitation period, which can give vastly different results depending on whether one has a tort claim or a contract claim. There is to be a single rule which makes the start date, the time of the act or omissions that give rise to the claim. One of the prime drivers for New Zealand courts accepting that there might be concurrent liability in tort and contract is now to be removed.

For the first time fiduciary claims will be caught by the strictures of the Limitation act rather than by the more generous application of the doctrine of laches or delay. This might also be of some controversy to those who see equity as protecting a kind of vulnerability that makes a more discretionary approach to limitations more desirable. Certainly it ought to be the subject of submission in select committee. There will no longer be an advantage in trying to convince the Court that there was a fiduciary aspect of the claim simply as a way of getting around the limitation period might apply to a tort claim.

The limited fix of "reasonable discoverability" that New Zealand Courts have employed and economic loss cases, and to some extent sex abuse cases, to deal with injustices of plaintiffs being unaware of the damage that they had all the suffered, or unable to do anything about that harm, is to be replaced by a concept of " delayed knowledge" ( including where the plaintiff ought to have reasonably known) which can allow a period to be extended by further three years from the date of that knowledge. There is to be a maximum long stop period of 15 years which will bar almost all claims. One exception is to be sexual abuse claims that are subject to their own discretionary regime, somewhat modelled on what now exists in the United Kingdom. Plaintiffs and those cases in particular would be saved the rather harrowing effort to satisfy the somewhat odd test currently employed by the New Zealand courts.

Other potentially significant aspects of the reform is that claims under the New Zealand Bill of Rights Act would be subject to the same regime as other claims. Previously the New Zealand Court of Appeal had held that it preferred to analyse the claims are discretionary Sugrue (P F)Ltd v AttorneyGeneral [2004] 1 NZLR 207 (CA). Amongst rights advocates this will no doubt generate some controversy - As might the note in the "impact" statement:

Government as litigant: Government will benefit from greater clarity in this area in the same manner as other litigants. The introduction of a 6year limitation period for certain public law compensation claims will provide certainty and will encourage claimants to take actiondiligently.

Government as administrator of the courts: There may also be costs savings if courts are able to dispose more efficiently of claims where limitation is an issue. There may be some reduction in cases I plaintiffs and defendants are more readily able to determine how the limitation defence affects their claim. It is not possible to estimate these savings as there is no information about the number of cases where limitation is presently an issue and no means of quantifying the potentialimpact on litigation decisions.